Pagan v. State, 90-2441

• Decision Date: 02 June 1992
• Docket Number: No. 90-2441,90-2441
• Citation: 599 So.2d 744
• Parties: 17 Fla. L. Weekly D1399 Jorge Castro PAGAN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 744

599 So.2d 744

17 Fla. L. Weekly D1399

Jorge Castro PAGAN, Appellant, v. The STATE of Florida, Appellee.

No. 90-2441.

District Court of Appeal of Florida Third District.

June 2, 1992.

Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Ivy Ginsberg Shanock, Asst. Atty. Gen., for appellee.

Before BARKDULL, COPE and GODERICH, JJ.

PER CURIAM.

Jorge Castro Pagan, defendant below, appeals his conviction on two counts of sexual battery and two counts of lewd assault. We affirm.

Defendant challenges the admission of the child victim's hearsay statements under subsection 90.803(23), Florida Statutes (1989). The trial court made a finding, required by the statute, that the child victim was unavailable to testify because "the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm...." Id. Sec. 90.803(23)(a)(2)(b). We conclude, contrary to defendant's submission, that the trial court did not abuse its discretion in finding the psychologist to be a qualified expert witness.

Likewise, we find no abuse of discretion in the trial court's declining to order an additional psychological examination of the child. The question of whether to order an additional psychological examination of the victim by a court-appointed expert is addressed to the sound discretion of the trial court. The record here does not reflect any circumstance that would call for the court to obtain a second expert opinion.

Defendant urges that the child could at least have testified at trial via closed circuit television, and therefore was not unavailable within the meaning of the statute. Before finding that the child was unavailable as defined by subsection 90.803(23)(a)(2)(b), the trial court heard testimony from the court appointed psychologist, a teacher, a guidance counselor, and the child's grandmother, as well as other testimony, and reviewed several deposition transcripts. On the basis of all of the evidence the court concluded that the child was unavailable within the meaning of the statute because of the "substantial likelihood of severe emotional or mental harm to the child." Order, March 23, 1990, at 1. There is substantial competent evidence in the record to support that finding. Defendant relies on Fricke v. State, 561 So.2d 597, 602 (Fla. 3d DCA 1990), but in that case the trial court failed to make the required statutory findings. Defendant also relies on Spoerri v. State, 561 So.2d 604, 606 (Fla. 3d DCA 1990), but there, too, the court failed to make the findings required by the applicable statute. Here the relevant findings were made.

Defendant also contends that the trial court should have excluded the child's hearsay statements because they did not satisfy the criteria for reliability set forth in paragraph 90.803(23)(a)(1). To the contrary, the trial court made particularized findings of reliability with regard to the child victim's hearsay statements to the school counselor, the school teacher, and the grandmother. The specific findings satisfied the statutory elements. There is substantial competent evidence supporting those findings and the hearsay statements were properly admitted.

Defendant contends that the victim's statements to the rape treatment center physician and an interviewer with the Children's Center of the State Attorney's office were not the subject of specific findings and should not have been admitted at trial. It appears, however, that there was a stipulation on the record as to the admissibility of those specific statements. In any event, there was no objection at trial to the introduction of those hearsay statements--presumably because of...